ADVERSARIAL DIRECTOR

A director who is adversarial to the board and likely to bring litigation against the association is not entitled to receive legal advice from the association’s counsel or attend executive session meetings where the matter is discussed.

Although there is no California statute or case directly on point, the issue was decided in a 2015 case by the Washington Court of Appeals. The Court decided that an adversarial director who was likely to sue the association was required to recuse himself from meetings where the board would discuss potential litigation involving the director. (Hartstene Pointe Maintenance Association v. Diehl, No. 45739-3-II (Wash. June 23, 2015).)

Case law from another state is not binding in California but the principles described in the case would likely produce the same result in a California court. This same principle applies to directors who breach confidential information or waive attorney-client privilege.